Archive for October 2013

Following the consultation on Reforming Judicial Review, launched in December 2012, and despite widespread opposition, in May 2013 it was announced that the Government would:
• Introduce a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.
• Ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit.
• Halve the time limit for applying for a judicial review of a planning decision from three months to six weeks.
• Reduce the time limit for applying for a judicial review of a procurement decision from three months to four weeks.
The first of these changes is awaiting implementation. The other changes came into effect in July 2013. In addition the Government is contemplating separate proposals which would see the fee for a Judicial Review application increase from £60 to £235.

In September 2013, the Government published a further consultation paper on the reform of judicial review.
It noted that the bulk of immigration and asylum cases would no longer go to the Administrative Court, but to the Immigration and Asylum Chambers in the Tribunals Service.

The paper argues that unreformed judicial review has three negative impacts:
• It inhibits economic development by causing delay to major projects;
• It is used by campaign groups as a political tool; and
• It adds to the cost of implementing executive decisions.
Not surprisingly each of these arguments is hotly disputed by the opponents of reform.

The new consultation requests views in six areas:
• planning challenges, and whether these should be sent to a new Planning Chamber within the Upper Tribunal, with specialist planning judges;
• the question of standing, i.e. who is entitled to apply for judicial review. It is noted that any changes will have to reflect the Aarhus Convention, which gives organisations who promote environmental issues and certain individuals the right to make challenges on environmental issues;
• how the courts deal with minor procedural defects, and whether this can be improved;
• the use of judicial review to resolve disputes relating to the public sector equality duty;
• whether the current arrangements for costs provide the right financial incentives, including legal aid; and
• the scope for making greater use of “leapfrogging” orders, so that appropriate cases can move quickly to the Supreme Court, cutting out the Court of Appeal.

Broadcasting of some court proceedings has moved a step forward, following approval of plans to allow filming of the legal arguments and the final judgments in criminal and civil cases in the Court of Appeal.

Subject to the approval of the House of Lords, the Government hopes that this will start at the end of October 2013.

The government plans to permit filming to allow the broadcast of sentencing remarks in the Crown Court. However victims, witnesses, offenders and jurors will continue to be protected, and will not be part of broadcasts. The date for the launch of this has not yet been announced.

This will, of course, supplement the broadcasting of cases in the Supreme Court which is already available.

As noted in the book, Chapter 5, there is a variety of ways in which cases may be disposed of without a court hearing – generically known as out-of-court disposals.

Since 2013, the Ministry of Justice has taken responsibility for policy developments in relation to out-of-court disposals. In April 2013, it issued guidance on the use of simple cautions; this was accompanied by a review of simple cautions, the results of which were published in September 2013. The Justice Secretary announced that, going forward, simple cautions would no longer be available for indictable only offences and certain serious either way offences involving possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. Exceptions will be made in certain cases and where a senior officer, as well as CPS if necessary, approves of their use.

In addition, the Secretary of State announced a more general review of the use of out-of-court disposals.

The Howard League for Prison Reform, established in the mid 19th century, is a national charity ‘working for less crime, safer communities and fewer people in prison. Too much money is spent on a penal system which doesn’t work, doesn’t make our communities safer and fails to reduce offending’.

In this podcast I talk to Frances Crook, Chief Executive of the League. She speaks about the work of the League, noting some of the successful impacts it has made in recent years. She talks about penal policy in the UK arguing that it operates in a more ‘punitive’ way than other European countries (including former Easter-bloc). She makes a passionate defence of the current probation service and deplores the current Government’s approach to reform of the service. Finally she calls on those setting out on their legal studies to understand the importance of social justice as an aspect of being a professional lawyer.

In July 2012, I noted developments relating to the encouragement of early guilty pleas. At that stage, a scheme had been rolled out in the magistrates’ courts and a crown court scheme was being trialled in London.

The crown court scheme has now been rolled out nationally.

The official view of the scheme is:

“The principle of the Early Guilty Plea Scheme is to identify those cases where a defendant is likely to plead guilty and to expedite those cases to an early guilty plea hearing….The Early Guilty Plea Scheme acknowledges that around three quarters of Crown Court cases plead guilty on the day of trial and is designed to encourage the guilty plea where appropriate to be entered at an earlier opportunity to prevent delaying justice unnecessarily.
The Early Guilty Plea Scheme allows the defence and CPS to identify those cases likely to plead guilty and offers a credit on sentence for the defendant where they plead guilty at the Early Guilty Plea Hearing. The Scheme encourages discussion between the CPS and defence practitioners before the Early Guilty Plea Hearing takes place where any issues such as basis of plea can be agreed. This discussion can be undertaken using secure email as a way of ensuring that the CPS are able to respond quickly to any queries. This ensures that all parties are ready for the Early Guilty Plea Hearing where, providing the National Offender Management Service have a pre-sentence report, sentencing can occur at the Early Guilty Plea Hearing avoiding additional hearings for sentence.
One of the benefits of the Scheme for defence practitioners is to enable them to secure maximum credit on sentence for their clients and reducing the number of hearings that they are required to attend. This also relieves the stress and anxiety felt by victims, witnesses and defendants whose case is finalised more quickly.”

As noted in the book the practical advantages of the scheme – in terms of saving resources, and improving efficiency – are to a degree at odds with the ‘due process’ model of criminal justice. Do you think the correct balance has been achieved?

The decision of the UK Supreme Court on Prisoners’ voting rights, published on 16 October 2013, seems to me to be rather more nuanced than much of the media coverage I have read and heard.

The case which reached the Supreme Court involved two appeals, one from England (Chester) and one from Scotland (McKeoch). Only the Chester case invoked the European Convention on Human Rights and the Human Rights Act 1998. Both cases also raised a question of EU law.

The issue under EU law arose from the focus in the EU on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. However, eligibility to vote in Member States is basically a matter for national legislatures, and a matter for each individual legislature to determine. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus, in both cases, the Supreme Court held that EU law did not apply.

As regards the European Convention on Human Rights and the Human Rights Act 1998, the Supreme Court noted that in a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (“ECtHR”) had held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1, the duty to hold free and fair elections.

Under the HRA, the Supreme Court is required to “take into account” decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with Article 3 Protocol 1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not, in the Supreme Court’s view, a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHR’s caselaw.

Thus contrary to some reporting, the Supreme Court has upheld the ECtHR’s view that the UK’s blanket ban on voting rights is incompatible with the European Convention. The Supreme Court did not issue a declaration of incompatibility, however, because that is a discretionary remedy; the Court had already issued such a declaration; the Government was undertaking work to respond to the initial declaration; it was not for the Court to say how the Government should ultimately resolve the matter; and that therefore, being a discretionary remedy, the Court would not exercise its discretion in this case.

In August 2013, I noted that Mike Maiden had been appointed as the Director of the new Probation Service. He has withdrawn from the post for personal reasons. The Government has just announced that, in his place, Colin Allars, the current director of probation within the National Offender Management Service (NOMS), has been chosen to take up the new role. Sarah Payne’s appointment as director of the NPS in Wales is unaffected.

The Government announcement states: “the two will work together to lead the new service. It is due to launch in April 2014 and tasked with protecting the public from 30,000 of the most dangerous offenders in England and Wales each year…”